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  1. #1
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    Default Can an Actor Sue for Discrimination in Casting

    My question involves labor and employment law for the state of: New York and California

    What part of federal law (either explicit or implied) would prevent an actor from suing a film casting organization on the basis that they auditioned for a roll, but were determined to be of the wrong height, weight, ethnicity or age for the specific roll?

  2. #2
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film


  3. #3
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    If I rjected a candidate for race/gender/nation origin/or such there would be a potential Title VII impact. However, being tall or pretty or having a certain accent are not normally legally protected characteristics, especially for actors. There is a fairly infamous court decision(s) involving the Hooters chain in which Hooters successfully won a case based on discrimination based on looks. I forget the legal phrase, but if the looks are a legitimate part of the job requirement, like say young, female and pretty for a pole dancer, then it is not (probably) illegal discrimination. I am not familiar with actor specific cases but the Hooters court decision was general enough to arguably apply. There is a somewhat different part of the law involving class actions lawsuits and broad classes of plaintiffs but that is WAY beyond something I can comment on. A big ad firm which NEVER hires certain classes pf people for ads covering a wide range of products is a much weaker position then say a beer company who only uses hot looking 20-somethings in their ads. On an aside, TV commercials are a lot more diverse in their casting then are movies or TV shows. I am not saying this legal, but I know which group is more likely to catch a class action lawsuit.

  4. #4
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    Quote Quoting jmk83
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    My question involves labor and employment law for the state of: New York and California

    What part of federal law (either explicit or implied) would prevent an actor from suing a film casting organization on the basis that they auditioned for a roll, but were determined to be of the wrong height, weight, ethnicity or age for the specific roll?
    Nothing prevents the actor from filing the lawsuit. The question is whether the actor could win the lawsuit. In order to succeed under federal law, the actor must prove that he or she is an employee of the company paying him/her for the acting work and must prove that the company discriminated against him/her on the basis of race, color, national origin, citizenship, sex, age (if the actor is age 40 or older), religion, disability, or genetic test information.

    What this means is that as an initial matter, if the actor is told he or she is the wrong height or weight that would not be illegal discrimination because it is not discrimination based on one of the factors listed in the above paragraph.

    However, even if the actor can allege that the employer discriminated based on one of the factors I listed in my first paragraph, federal law provides a defense to the employer where the requirement for a particular characteristic (with one major exception which I'll get to later) is a "bona fide occupational qualification" (BFOQ). See, for example, section 703(e) of the Civil Rights Act of 1964. Under the BFOQ exemption, an employer may discriminate against an employee on the basis of a protected characteristic if the particular job has a bona fide need for a person of a particular race, sex, etc. Acting is the classic example typically given for the BFOQ. If a company is doing a film of the life of Sandra Day O'Connor, the famous attorney and Supreme Court justice, it would be a BFOQ that the actor chosen must be a female since the film is trying to accurately portray a particular real life person.

    The one characteristic that is not covered by the BFOQ exemption is race. It is never legal to discriminate by race. There are various ways that studios and theaters use to get around that, though some of them may be questionable if the issue was actually litigated.


    Quote Quoting PayrolGuy
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    That regulation simply reiterates the BFOQ exception for age discrimination in the Age Discrimination in Employment Act (ADEA). This is a good place to point out for the OP that there is no one single federal law that prohibits discrimination by employers. Instead, there are several acts — primarily the Civil Rights Act of 1964, the ADEA, and the Americans with Disabilities Act (ADA), each of which has a BFOQ exemption in them.

  5. #5
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    Quote Quoting jmk83
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    My question involves labor and employment law for the state of: New York and California

    What part of federal law (either explicit or implied) would prevent an actor from suing a film casting organization on the basis that they auditioned for a roll, but were determined to be of the wrong height, weight, ethnicity or age for the specific roll?

    There is no federal or state law that prevents employers from hiring or not on the basis of height or weight, and somewhat age. Protected age is only 40-70.

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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    Quote Quoting Guybrush
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    There is no federal or state law that prevents employers from hiring or not on the basis of height or weight, and somewhat age.
    Actually one state — Michigan — does prohibit discrimination based on weight. DC prohibits discrimination based on appearance.

    Quote Quoting Guybrush
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    Protected age is only 40-70.
    Under federal law it is age 40 and older; there is no cap on the upper range of age. An employee age 100 is just as protected by the federal ADEA as someone age 41.

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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    My first thought was BFOQs..... and then qualifications beyond these characteristics. And then just the sheer number of candidates for each role who are qualified.

  8. #8
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    The following quote is from the CA-DLSE manual, which is a very good source for CA specific rules.

    46.2 The DLSE Interpretation of the Basic Definition of Hours Worked The DLSE enforcement
    policy has consistently held that hours for which an employee has been hired to do nothing or
    merely to wait for something to happen are hours subject to the control of the employer, and
    constitute hours worked. (Armour & Co. v. Wantock (1944) 323 U.S. 126; Skidmore v. Swift
    (1944) 323 U.S. 134.) This longstanding interpretation is based on U.S. Supreme Court case
    law and consistent with the California Supreme Court’s holdings in Morillion and Mendiola. If,
    in the case of “standby” or “on call” status, the restrictions placed on the time of the employee
    are such that the employee is unable effectively to engage in private pursuits, the time is subject
    to the control of the employer and constitutes hours worked. (Mendiola, supra, at 841; see also
    Madera Police Officers Association v. City of Madera (1984) 36 Cal.3d 403 and O.L.
    1998.12.28).


    46.3.3 Federal Regulations At Odds With California Case Law. The Patel court’s definition is at
    odds with federal law which is to be applied to employees in the “Health Care Industry”. The
    federal regulations require an employer to pay for all the hours the employee is required to be
    on the premises when such requirement is a condition of the employment. For the past fifty
    years, federal courts have interpreted the FLSA to require payment for time in which the employee is required to remain on the premises of the employer in order to respond to
    unscheduled contingencies. As the Court explained in Armour & Co. v. Wantock (1944) 323
    U.S. 126, 133:
    “Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing
    but wait for something to happen. Refraining from other activity often is a factor of
    instant readiness to serve, and idleness plays a part in all employments in a stand-by
    capacity...Readiness to serve may be hired, quite as much as service itself.”
    Thus, unlike the interpretation of the term by the Patel court, under federal rules, “hours worked
    are not limited to the time spent in active labor but include time given by the employee to the
    employer.” (Skidmore v. Swift & Co. (1944) 323 U.S. 134, 138.) Instead, federal case law, and
    DLSE enforcement policy, has focused on how close an on-call employee must remain to the
    employer’s premises to be considered entitled to compensation. This case law is summarized at
    29 CFR sec. 785.17, which states, “An employee who is required to remain on call on the
    employer's premises or so close thereto that he cannot use the time effectively for his own
    purposes is working while ‘on call’.”

  9. #9
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    Quote Quoting DAWW
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    The following quote is from the CA-DLSE manual, which is a very good source for CA specific rules.
    Except that the OP did not ask about pay. The OP asked about employer discrimination based on particular characteristics, i.e. "height, weight, ethnicity or age".

  10. #10
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    Default Re: Regarding Equal Employment Exemptions in Sports, Theater, and Film

    Quote Quoting PayrolGuy
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    Excellent! Thank you.

    Instead, there are several acts — primarily the Civil Rights Act of 1964, the ADEA, and the Americans with Disabilities Act (ADA), each of which has a BFOQ exemption in them.
    And than you TaxingMatters as well!

    This is great information - from a simple google search, I wasn't sure which sources I needed to be looking at. I'm asking as I work in entertainment and media production, but only as a small LLC. I'm doing the best I can to educate myself on the topic. Much appreciate guys!

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